Louisville, H. & St. L.R. Co. v. Hathaway's Ex'x

• Citation: 89 S.W. 724,121 Ky. 666
• Parties: LOUISVILLE, H. & ST. L. R. CO. v. HATHAWAY'S EX'X.
• Decision Date: 16 December 1905
• Court: Court of Appeals of Kentucky

89 S.W. 724

121 Ky. 666

LOUISVILLE, H. & ST. L. R. CO. v. HATHAWAY'S EX'X.

Court of Appeals of Kentucky.

December 16, 1905

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

"To be officially reported."

Action by Albert C. Hathaway's executrix against the Louisville Henderson & St. Louis Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Helm Bruce & Helm, for appellant.

Edward F. W. Kaiser, J. W. S. Clements, and Rowan Hardin, for appellee.

BARKER J.

This action was instituted in the Jefferson circuit court to recover damages for the death of Albert C. Hathaway, caused, as is alleged, by the negligence of the appellant railroad company in running over and cutting off his arm, from which injury he died. The answer controverted the material facts of the petition and alleged contributory negligence, which was denied by reply, thus completing the issues in the case. A trial by a jury resulted in a verdict of $3,000 in favor of the appellee, of which the corporation is now complaining.

The facts are these: Albert C. Hathaway, who had been discharged from an employment in Louisville, Ky. for drunkenness, went to Owensboro in search of work. While in that city he was on a protracted debauch, and seems to have left there on a train which passed at 4 o'clock a. m. on the 12th day of June, 1902. At Lewisport, as we understand the record, he left the train, presumably because he had not sufficient money to pay his way further. At the latter place he undertook to, and did, raise a small amount of money upon the plea of being a Mason in distress. He was told, however, that at Hawesville, a town some 10 miles distant, there were quite a number of Masons, and if he would go there he could probably obtain more substantial assistance. This he endeavored to do by walking along the track of the defendant railroad. While en route, at one of the stations, he stopped and obtained water to drink. His nerves were very much unstrung, and the section boss who gave him the water advised him not to walk further, but to rest in the shade, as it was very hot. This he declined to do, and continued on his way. When within about 2 1/2 miles of Hawesville he seems to have fallen, and lay beside the track his feet somewhat out from the roadbed, near or in some weeds which grew there; his head lying between the ends of the cross-ties, but outside the rail. His hat, which had fallen from his head, was on the track between the rails. Between 1 and 2 o'clock in the day a train of cars loaded with gravel was being backed from the company's gravel pits towards the point where Hathaway was lying. The conductor and colored brakeman were on the caboose, keeping a lookout. The train was running at a rate of about 15 miles an hour. When within about 150 yards of where Hathaway was lying, both the conductor and the brakeman observed him, but did not know that it was a man, or what it really was. They watched the object intently, however, and when they got within four or five car lengths of the decedent they recognized the object to be a man. Instantly the emergency signal was given by the conductor, and it is not denied that from that time on everything that could be done to stop the train was done, and that it was stopped within as short a space as was possible. As the decedent lay, he was in no actual dangers from the cars, and had he remained quiet the train would have passed him without injury; but about the time the caboose, which, as said before, was the forward end of the train, got within 30 feet of him, he spasmodically, as it appears, threw his arm across the track, and it was crushed off by the wheels of the caboose. The train was stopped after the caboose and the second car had passed the point where he lay. The conductor sprang to the ground, and went to the injured man's assistance, who had by this time arisen from where he lay, and when the conductor approached him he grasped that officer with his uninjured arm, and tried to speak, but could only mumble incoherently. He was frothing at the mouth, and his face much flushed. The conductor at once placed him in the caboose, and the train was backed to the gravel pits, where the company maintained a telegraph station, and a message sent to Cloverport to have a surgeon at the depot when the train reached there, and then the wounded man was carried to Cloverport, where he was placed in charge of Dr. A. A. Simmons, a surgeon of the defendant company; but he was in extremis and died five minutes after. There was little or no hemorrhage from the wound; the ends of the arteries being mashed together by the wheels so as to staunch the flow of blood. The appellee, after proving by her own testimony her appointment and qualification as administratrix, introduced the colored brakeman as to the material facts of the accident, and then rested her case, whereupon the appellant moved for a peremptory instruction in its favor, which was overruled by the court. It then introduced its evidence, showing the facts we have detailed about the drunkenness of the decedent, his physical condition, and his undertaking to walk to Hawesville along the line of its track. It also introduced its conductor and engineer, who testified as to the discovery of the decedent lying near the track, and that everything that could be done to stop the train in time to save him was done. Dr. Simmons testified as to the patient's condition when he arrived at Cloverport, and his death, and also gave it as his opinion that he died, not from the shock of having his arm crushed off, but from sunstroke, apoplexy, or alcoholism, or a combination of these.

The conclusion we have reached as to the merits of the motion for a peremptory instruction renders it unnecessary for us to discuss any other question in the case. Appellee's witness, James Dean, who was the brakeman on the train at the time the injury was inflicted, states all of the evidence on the merits of her claim for damages. As it must be admitted that at the best there is only a scintilla of evidence of negligence, and that this scintilla must be deduced from the testimony of James Dean, we will set forth accurately what this witness said. In response to the question, "I will get you to state to the jury how it [the injury] happened," he said: "Well, he was laying near the track when we seen him, when I seen him, and we were backing up pretty sharply, and when I first discovered him I could not well tell what it was, whether it was a man, or a bunch of weeds, or what. The weeds was a little high there where he was laying at the time. When we first seen him, I reckon it was something near one hundred or fifty yards when I first discovered him; something near that as near as I can tell. After getting close to him I discovered it was a man. The conductor asked me what it was at first, and I told him I didn't really know what it was, and after getting closer I says to him, 'It looks like a man,' and after we got within about I couldn't exactly tell how close I could see it was a man, and I told him it was a man. Of course, then, he signed the engineer down, and after I told him it was a man, and he could see it was a man, I suppose he signed him down, and we ran about a couple of cars over him. Q. At the time you saw this object and told the conductor that you thought it was a man, could the train have been stopped in order to avoid running over this man at that time? A. Not at that time. Q. I am speaking of the time you saw this object on the track and you told the conductor about it. Now, if the conductor would have made any attempt to stop the train, could the engineer have stopped the train at that time? A. Well, I don't know whether he could or not exactly. I could not tell you how quick he could stop--nothing like that. Q. How far did the car run after you had told the conductor that you thought it was a man before he tried to stop the car--before the conductor tried to stop the car? A. I don't know exactly how far it ran. Q. About how far? A. Well, I could not tell exactly how far. Q. Had he gone three car lengths or four car lengths? A. Yes, sir; I guess he had, as much as three. Q. Had he gone as much as four or five car lengths? A. I could not tell exactly whether it was that much or not. Q. Who saw the object first? A. The conductor seen it first. Q. Before you did? A. Yes, sir. Q. What did he say about it? A. The conductor asked me what was it on the track, and then I looked, and I says to him, 'I don't know exactly what it is,' and he says, 'It looks like a bunch of weeds.' He says, 'It is a bunch of weeds,' or 'what is it?' That is what he said. Q. Did the conductor make any attempt to stop the train after he saw the object on the track at that time? A. Not at that time; no, sir. Q. How far did he run the train from...